Kilo J.
LeVeque appeals from the district court's order
relinquishing jurisdiction. LeVeque also appeals from the
district court's decision to revoke his probation prior
to the period of retained jurisdiction.

I.

FACTUAL
AND PROCEDRUAL BACKGROUND

Pursuant
to a plea agreement, LeVeque pled guilty to burglary, Idaho
Code § 18-1401, and possession of methamphetamine, I.C.
§ 37-2732(c)(1). The district court imposed concurrent
sentences of ten years with four years determinate for the
burglary conviction and seven years with four years
determinate for the possession of methamphetamine conviction.
The district court also retained jurisdiction. Following the
period of retained jurisdiction, the district court suspended
LeVeque's sentence and placed him on probation for three
years.

When
LeVeque's probation officer left employment with the
Department of Correction, LeVeque's criminal history was
reviewed anew and it was discovered that LeVeque had a
previous sex offense conviction in South Dakota. LeVeque was
originally charged with felony second degree rape in that
state, but the charge was later amended to misdemeanor sexual
contact without consent. LeVeque entered a plea of nolo
contendere to the misdemeanor charge.[1]Because of the
South Dakota conviction, LeVeque's terms of probation
were amended from general supervised probation to sex
offender probation which resulted in additional terms and
conditions of supervision. As part of the sex offender
treatment, LeVeque was required to answer questions under
polygraph examination regarding his sexual history. When
asked about his prior conduct in the South Dakota case,
LeVeque denied sexual contact occurred without consent and
the polygraph indicated that he was deceptive in his answers.
This led to LeVeque being dismissed from sex offender
treatment.

LeVeque
filed a motion to end probation and reduce terms of probation
in which LeVeque requested that the district court reduce the
time frame of supervised probation and "eliminate his
status in any way as a 'sex offender' or some similar
label." The district court denied the motion finding
that the court "lacks the ability to dictate how to
classify and supervise LeVeque to an executive branch agency
such as the State of Idaho Department of [Correction].
LeVeque's motion flies in the face of the doctrine of
separation of powers." In its order, the district court
noted that LeVeque had willfully violated his supervised
probation by testing positive twice for using alcohol,
failing his sexual history polygraph examination, and testing
positive for a controlled substance (Kratom).

Thereafter,
the State filed a report of probation violation alleging that
LeVeque failed to comply with the terms of his sex offender
probation, including: (1) engaging in an unapproved sexual
relationship, (2) being terminated from his sex offender
treatment program, and (3) lying on his polygraph
examinations. LeVeque denied the allegations and the district
court held an evidentiary hearing. At the hearing, LeVeque
requested the district court declare the specific terms of
the sex offender probation to be improper in his case. The
district court responded, stating: "I don't have the
jurisdiction to tell an executive branch agency like the
Idaho Department of Corrections how to supervise you.
It's their business and their business alone how they
choose to classify you, what terms and conditions to put upon
you."

The
district court found that LeVeque had willfully violated his
probation. The district court revoked probation and executed
the underlying sentence, but again retained jurisdiction. The
court noted that although it did not view LeVeque as a good
candidate for probation, it wanted him to engage in sex
offender treatment and give him an opportunity to prove the
court wrong. In its probation violation disposition, the
district court stated that it was recommending sex offender
treatment after LeVeque disclosed the circumstances of the
South Dakota conviction in a polygraph examination. However,
rather than place LeVeque in the sex offender treatment
program, the Department of Correction assigned LeVeque to a
drug offender treatment program, which he successfully
completed, and never administered the district court's
recommended polygraph examination.

At the
subsequent jurisdictional review hearing, the State
recommended probation although the prosecutor expressed
concern that LeVeque had not been required to complete a sex
offender rider. LeVeque also asked for probation. The
district judge noted that LeVeque had not completed the
polygraph. LeVeque complained that he had not been afforded
the opportunity to do so. Regardless, the district court
relinquished jurisdiction. LeVeque timely appeals.

II.

ANALYSIS

LeVeque
argues that the district court abused its discretion both
when it revoked LeVeque's probation prior to the period
of retained jurisdiction and when it relinquished
jurisdiction.

A.
Revocation of Probation

It is
within the trial court's discretion to revoke probation
if any of the terms and conditions of the probation have been
violated. I.C. §§ 19-2603, 20-222(2); State v.
Beckett,122 Idaho 324, 325, 834 P.2d 326, 327 (Ct. App.
1992); State v. Adams,115 Idaho 1053, 1054, 772
P.2d 260, 261 (Ct. App. 1989); State v. Hass, 114
Idaho 554, 558, 768 P.2d 713, 717 (Ct. App. 1988). Once a
probation violation is established, the district court must
then determine whether to revoke or continue probation.
State v. Sanchez,149 Idaho 102, 105, 233 P.3d 33,
36 (2009). In determining whether to revoke probation, a
court must examine whether the probation is achieving the
goal of rehabilitation and is consistent with the protection
of society. State v. Upton,127 Idaho 274, 275, 899
P.2d 984, 985 (Ct. App. 1995); Beckett, 122 Idaho at 325, 834
P.2d at 327; Hass, 114 Idaho at 558, 758 P.2d at
717. A district court's decision to revoke probation will
not be overturned on appeal absent a showing that the court
abused its discretion. Sanchez, 149 Idaho at 105, 233 P.3d at
36. When a trial court's discretionary decision is
reviewed on appeal, the appellate court conducts a
multi-tiered inquiry to determine whether the lower court
correctly perceived the issue as one of discretion, acted
within the boundaries of such discretion and consistently
with any legal standards applicable to the specific choices
before it, and reached its decision by an exercise of reason.
State v. Hedger,115 Idaho 598, 600, 768 P.2d 1331,
1333 (1989).

LeVeque
argues that the district court erred because it did not
perceive the outer bounds of its discretion. Specifically,
LeVeque contends that because the district court did not
recognize its authority to consider LeVeque's challenges
to the terms of his probation, it failed to determine whether
the terms of probation were valid before reaching the factual
predicate as to whether there was an actual violation.
Therefore, its decision to revoke LeVeque's probation was
an abuse of its discretion and should be vacated. On the
other hand, the State asserts that the district court
properly exercised its discretion when it revoked
LeVeque's probation.

Idaho
Code § 20-222(2) provides that "the court may issue
a warrant for violating any of the conditions of probation or
suspension of sentence and cause the defendant to be
arrested. Thereupon the court . . . may revoke the probation
and suspension of sentence and cause the sentence imposed to
be executed." According to the district court's
comments at LeVeque's evidentiary hearing, its decision
to revoke probation was based upon the following
considerations. First, the court found that all of the
probation violation allegations had been proven. Second, the
court observed that LeVeque had "acted like a spoiled,
entitled infant" throughout the case. Third,
LeVeque's conduct showed his unwillingness to comply with
rules of probation. Fourth, the court was concerned that
LeVeque had made a false statement pertaining to his sobriety
during his right of allocution. Thus, the district court
found that LeVeque violated terms of his probation, both for
the conditions set forth as a sex offender and also because
...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.